Silencing David Hicks is absurd and shameful

If there was nothing wrong about how David Hicks was treated, why won't they let him talk about it?

Whenever a government passes new terrorism laws, there's a mantra that's always repeated: if you haven't done anything wrong, you don't have anything to hide.

Well, that cuts both ways.

During Hicks's captivity, the Howard government insisted that he was being treated in accordance with the law, that he hadn't been tortured, that Gitmo was humane and professionally managed, that there was no legal or moral necessity for suspects to receive trials.

Well, if there was nothing untoward about Guantanamo, its supporters should be welcoming the sunlight of publicity. Here, you would think, is the perfect opportunity to explain why what was done to Hicks was legally and morally legitimate.

But, somehow, that's not what they want.

Instead, we are seeing a straightforward attack on the public's right to know, a continuation of an extraordinary campaign to muzzle discussion about Guantanamo and what happened there.

The confinement of David Hicks with no due process whatsoever eventually became, thanks to the efforts of thousands of campaigners, an embarrassment both to Washington and Canberra. Having determined, almost at once, that Hicks represented no threat, the Americans wanted rid of him.

But, more than that, they wanted to keep him quiet about what had been done to him.

So they struck a remarkable deal, according to which, in return for freedom, Hicks agreed not to speak to the media for a year. He was not permitted to take legal action over his treatment and he was to withdraw allegations that he'd been abused in custody.

These are not stipulations you'd associate with a clear conscience.

Nor, of course, were they enforceable.

That's why, as soon Hicks returned to Australia, the government threatened him with 'proceeds of crime' legislation.

Peter van Onselen has drawn attention to the Australian Institute of Criminology's two justifications for the Proceeds of Crime Act. The laws are, they say, supposed "to deprive criminals of the benefits of their financially motivated criminality" and to "reduce […] the capital available to perpetrators of future criminal ventures".

As van Onselen points, no-one has ever suggested that Hicks was engaged in "financially motivated criminality", while the idea that the royalties from Guantanamo: My Journey might fund "criminal ventures" is simply ludicrous.

But there's a far more fundamental issue.

How can Hicks be accused of profiting from a crime when he was never convicted at trial?

Yes, he pleaded guilty in Guantanamo - but only before a military commission. And, as Ben Wizner from the American Civil Liberties Union explained at the time, the Kazka-esque nightmare of Gitmo military commissions offered detainees no other choice but a guilty plea.

"In an ordinary justice system," Wizner explained, "the accused must be acquitted to be released. In Guantanamo, the accused must plead guilty to be released - because even if he is acquitted, he remains an 'enemy combatant' subject to indefinite detention. Only by striking a deal does a detainee stand a chance of getting out."

That was why the Law Council of Australia called the proceedings "shameful". The military commission was, according to Australia's peak legal association, "designed to lay a veneer of due process over a political and pragmatic bargain".

Let's be clear: when people call Hicks a "convicted terrorist", that's what they're talking about - a result obtained through a process that the Law Council described as "an attempt to protect the credibility and interests of the US government" and a "contrived affair played out for the benefit of the media and the public".

In 2004, the Howard government, with Hicks specifically in mind, amended the proceeds of crime legislation to cover offences committed abroad. But those amendments have subsequently been removed and so, because Hicks was neither convicted in Australia, nor faced a proper court in the US, it's far from clear whether the DPP's action against him will be successful.

Which is all to the good.

At Overland, the magazine I edit, we've been running a petition campaign opposing the action against Hicks. It has now been signed by a who's who of publishing and editing in Australia.

Why? Because people involved with books understand the implications of this whole shabby episode.

If you look back through Australian history, there's a long list of people - ranging from Lindy Chamberlain to Tim Anderson, who were wrongly convicted and then exonerated after long campaigns by their supporters. Any of those people could have been, when they were trying to publicise their cause, targeted by the current laws.

Likewise, any former prisoner trying to expose jail conditions or an ex-crim writing about police corruption, might equally end in court.

What publisher is going to take on a book by an ex-jailbird if they know they'll be entangled in complicated legal proceedings? You can say goodbye, then, to any more novels like Gregory David Roberts's best-selling and critically acclaimed Shantaram.

The particular irony about the Hicks case is that the War on Terror raised all kinds of allegations of state-sanctioned illegality - from "extraordinary rendition" (aka kidnapping) to "enhanced interrogation" (torture) to the invasion of Iraq (which the vast majority of legal scholars said was contrary to international law). Yet the politicians most associated with those years - George Bush, Tony Blair, Donald Rumsfeld, John Howard and the rest of them - are all now peddling self-justificatory memoirs.

But when you are powerful enough, laws like this never apply.

So then that's the situation, then. John Howard can go up and down the country, spruiking Lazarus Rising. He's allowed to make money selling a book that contains his version of the Hicks story.

David Hicks, on the other hand, after spending years in Guantánamo without trial, is heading back to court.

It's absurd and it's shameful.

Jeff Sparrow is the editor of Overland literary journal and the author of Killing: Misadventures In Violence. On Twitter, he is @Jeff_Sparrow.

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